Mr Ravi’s basis for the motion stems from the different treatment by the AG of Yong and the “mastermind” or “boss” who had instructed Yong in the trafficking of the heroin in 2007.
While the AG proceeded to charge Yong with the capital offence of drug trafficking, which warranted the mandatory death penalty, Yong’s boss – Singaporean Chia Choon Leng – was not charged at all.
Chia instead has been detained under Singapore’s Criminal Law (Temporary Provisions) (CLTP) Act.
Article 12 guarantees equality and equal treatment under the law.
Mr Ravi cited the recent case of Ramalingam Ravinthran who was also charged for trafficking while his accomplice, Sundar Arujunan, was not. In the event, Ramalingam was sentenced to death while Sundar was sentenced to 20 years and 24 strokes of the cane.
Ramalingam’s challenge in the courts on the AG’s exercise of his prosecutorial discretion – that the charges against him were different from those against Sundar and thus the AG had acted unlawfully - was dismissed by the courts on 10 January. (See here.)
However, the Chief Justice, in his judgement on the case, said:
“Rather, in the absence of prima facie evidence to the contrary, the inference would be that the Prosecution has based its differentiation on relevant considerations. This conclusion does not mean that an aggrieved offender can never prove a case of unlawful discrimination. Such a case may be self-evident on the facts of a particular case (for example, where a less culpable offender is charged with a more serious offence while his more culpable co-offender is charged with a less serious offence, when there are no other facts to show a lawful differentiation between their respective charges).”
Mr Ravi says Yong’s case “fits precisely within the category of unlawful discrimination described by the Court of Appeal.” He says that if anything, Yong, being a drug mule, would be the "less culpable offender" and Chia would be the "more culpable offender", given that, in the wider context, the drug laws are supposed to protect society and thus masterminds like Chia would do more harm.
Mr Ravi’s motion argues that there are indeed “no other facts” which would differentiate between the culpability of Yong and Chia in this particular case and thus the AG had erred in selecting to prosecute Yong but not Chia. He contends that the matter is even more grave as it involves the sentence of death on Yong.
In Yong’s original trial, the judge had asked the prosecutor why Chia was not charged. The prosecutor replied:
“Initially, he was but due to the difficulty of the evidence, we decided that we would withdraw the charges against him and executive action was taken against him.”
Mr Ravi contends that this is tantamount to prosecutorial discrimination, which would be against the law. “The case is stronger because Chia is not charged with a less serious offence but with no offence at all,” Mr Ravi said. He added that the AG’s assertion that Chia was not charged because of a “difficulty of evidence” does not withstand analysis and provides prima facie basis for the courts to step in and to require the AG to justify his decision.
Mr Ravi says “it is now clear that an analysis of the interaction between the right to equality before the law under Article 12(1) and the prosecutorial power under Article 35(8) is required.”
“The Court should ask itself whether the evidence before it including the very fact of the differentiated charges is sufficient to raise a prima facie case of a possible infringement of Article 12(1),” he says.
He further argued that it is important for the courts to review the matter as the Misuse of Drugs Act (MDA), which Yong was prosecuted under, is not intended to target drug mules like Yong but “the masterminds behind the drug trafficking enterprises.” In other words, the MDA was created to target people like Chia.
Mr Ravi cited the former Minister for Home Affairs, Mr Chua Sian Chin, who said in Parliament in 1975 on the amendments to the MDA:
“The death penalty will also be imposed for the unauthorised import, export or trafficking of more than 30 grammes of morphine or more than 15 grammes of heroin … It is not intended to sentence petty morphine and heroin peddlers to death.” (Emphasis added.)
“In light of the above,” Mr Ravi says, “the Court should quash the conviction and send the matter back to the Attorney General to consider how to proceed in a manner that complies with Article 12 against joint actors in relation to a joint course of conduct on the same date giving rise to the same character of alleged criminal activity under the Misuse of Drugs Act notwithstanding a difficulty of evidence.”
Yong, whose affidavit was also submitted to the Court on Friday, says that his “complaint is that the Attorney General has prosecuted [him] for a capital offence although he has felt unable to prosecute Chia for any offence at all.”
“My complaint is that the Attorney General has felt unable to prosecute Chia even though we were both apprehended in Singapore by the Singapore police on account of the same episode involving the same activities on the same date with the same third parties centered around the same parcel.”
Yong says if the AG felt unable to prosecute Chia, then he (AG) should also not have found it possible to prosecute him as he and Chia “were similarly placed in relation to all the material events” of that day.
Yong was the one who informed the police about Chia when he was first arrested in 2007 and had identified him in a photograph.
“I do not recall having been asked by the prosecutor to assist in relation to any difficulty of evidence perceived in relation to Chia,” Yong says.
Yong submitted his clemency appeal to the President in July last year. He is awaiting the president’s decision.
Chia is still in detention and “is likely to be released in 1 to 2 years,” Mr Ravi said in his affidavit.
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See the court files under "Attachments" below.
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